International Health Law. Access to Health Care

André den Exter

denexter@bmg.eur.nl

International Health Law: The Right to Health Care

• Definition

• Conceptual framework

• Nature and Content

• Justiciability

• Conclusions

Defining the scope

• Right to Health or Health Care?

Conceptual framework

• Human Rights Treaties and documents– Article 25 Universal Declaration and article 12(1) International

Covenant on Economic, Social and Cultural Rights (ICESCR): 'highest attainable standard of physical and mental health'

– Constitution World Health Organization (WHO): 'a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity'

• Regional documents: – the American Convention on Human Rights;– the African Charter on Human Rights;– the Biomedicine Convention

• International trade law:– International Labour Organization (ILO) Social security

Conventions; World Trade Organization (GATT, GATS, TRIPS)

Nature and Content of a right to health care: International law• Social right

• Article 12(2) ICESCR: steps to be taken to achieve 'the full realisation of this right', in particular in the following areas: – infant mortality and child development;– environmental hygiene;– prevention, treatment and control of epidemic, endemic, and other diseases,

and– medical care.

• General Comment No. 14 on Health (14.7.2000)

• ‘Minimum core obligations'

• Typology of obligations (respect, protect and fulfil)

• AAAQ

• Progressive realization & Non-retrogression• Consequences Non-State parties

Content of a Right to Health Care: National law and Global Trends

• Constitutional/statutory Right

• Explicit/implicit

• Constitutional commitments

• Part of monitoring/review system (accountability)

Justiciability of the right to health care ECrtHR:• Karara v. Finland (29 May 1998), prohibition of torture and

inhuman and degrading treatment, article 3 ECHR– deportation HIV infected person subject to inhuman and

degrading treatment?

African Commission on Peoples’ and Human Rights:• Purohit and Moore v. The Gambia, violation right to health

article 16 ACHR (241/2001)– Right to health includes access to health facilities, goods

services

Inter-American HR Court:• Yakye Axa Indigenous Community v. Paraguay (June 15, 2005)

failure adopting positive measures (health, education)

Justiciability (2): Progressive jurisprudence in national law

• Mariela Viceconte v MoH Agentina Case No 31777/96 (1998)

– State obligation production vaccin; political implications

• TAC case South Africa (2002) 5 SA 721 CC

– Failure provide anti-retroviral drugs

• Paschim v. State of West Bengal (India) (1996) 4 SCC 37 SC

– Emergency care core component right to health

• Central Board of Appeal (NL) 8 September 2006: direct effect Social Security Code (Part IV)

– User charges violate European Code

Conclusions• International treaties and national law accept the right to health care as

a fundamental human right

• Content: AAAQ

• International HRL: classified in (binding) obligations

• Right to health not inherently enforceable?

• Generally, courts unwilling to accept the binding effect of international social right to health care*

• Operationalized by statutory law it may entail individual enforceable

entitlements

• ECrtHR has followed a different strategy linking individual-social rights

• Progressive realization and cost containment reforms (cost sharing, delisting services health plans).

Examples

Case study: Healthcare behind bars

• ECrtHR: McGlinchey v UK•

– Asthmatic drug addict– Examined by prison doctor– In critical condition to hospital – Complaint: failure to diagnose her condition and

given inadequate medical treatment and care.

Claiming ALS treatment• In 1976 the applicant was diagnosed with amyotrophic

lateral sclerosis (ALS) also known as Lou Gehrig’s disease. In June 1999 the applicant was prescribed Rilutek, a drug used to treat ALS. On 14 June 1999 the applicant asked the Polish Health Insurance Fund to refund him the cost of the medicine. He pointed out that he was a pensioner and that the price of a prescribed monthly intake of the drug exceeded his means.

• The HIF is willing to refund 70% of the costs.• The applicant respond that he could not afford to pay for

the medicine and that he had no children to help him.• The applicant complained under the Convention that the

refusal to refund the full price of a life-saving drug violated his fundamental rights.